CAPITAL CASE No. 12-7720 IN THE SUPREME COURT OF THE UNITED STATES DONALD WAYNE STROUTH, Petitioner vs. ROLAND W. COLSON, Warden Respondent ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT PETITIONER S REPLY TO RESPONDENT S BRIEF IN OPPOSITION Mark E. Olive Henry A. Martin Law Office of Mark E. Olive, P.A. Federal Public Defender 320 W. Jefferson Street Jerome C. Del Pino* Tallahassee, FL 32301 Assistant Federal Public Defender (850) 224-0004 810 Broadway, Suite 200 Nashville, Tennessee 37203 (615) 736-5047 *Counsel of Record
TABLE OF CONTENTS Table of Auorities.................................................... i Reply Brief for Petitioner............................................... 1 A. Petitioner s Challenge To The Application Of Cullen v. Pinholster Is Properly Before The Court Where That Decision Was The Basis Of The Court Of Appeals Refusal To Consider Petitioner s Previously Unavailable Mental Illness Evidence, Is The Subject Of A Circuit Conflict, And Conflicts Wi Recent Decisions Of This Court....... 2 B. Petitioner s Martinez Claim Is Properly Before The Court And Martinez Instructs The Proper Resolution Of The Pinholster Catch- 22....................................................... 5 CONCLUSION....................................................... 8
TABLE OF AUTHORITIES Cases Page(s) Ballinger v. Prelesnik, F.3d, 2013 WL 776790 (6 Cir. March 4, 2013)...... 3 Cullen v. Pinholster, 563 U.S., 131 S.Ct. 1388 (2011)................. passim Dickens v. Ryan, 688 F.3d 1054 (9 Cir. 2012).............................. 6 Dickens v. Ryan, 704 F.3d 816 (9 Cir. 2013)............................... 7 Eddings v. Oklahoma, 455 U.S. 104 (1982)................................. 6 Haynes v. Thaler, 568 U.S. (2012)..................................... 5 Johnson v. Williams, 568 U.S. (2013)................................... 3 Lockett v. Ohio, 438 U.S. 596 (1978)...................................... 6 Martinez v. Ryan, 566 U.S., 132 S.Ct. 1309 (2012)................... passim Porter v. McCollum, 558 U.S. 30 (2009).................................... 3 Rompilla v. Beard, 545 U.S. 374 (2005)................................... 1,3 Schad v. Ryan, No. 07-99005, 2013 WL 791610 (9 Cir. Feb. 26, 2013).......... 7 Sears v. Upton, 561 U.S., 130 S.Ct. 3259 (2010)......................... 1, 6 Smi v. Colson, U.S. No. 12-390........................................ 8 State v. Sluder, No. 1236, 1990 WL 26552 (Tenn. Crim. App. March 14, 1990).... 7 State v. Thompson, 768 S.W.2d 239 (Tenn. 1989)............................ 7 Strou v. State, 755 S.W.2d 819 (Tenn. Crim. App. 1986).................... 4 Thompson v. State, 958 S.W.2d 156 (Tenn. Crim. App. 1997).................. 8 Trevino v. Thaler, No. 11-10189........................................ 2, 7 Wiggins v. Smi, 539 U.S. 510 (2003).................................. 1, 6 i
Williams v. Taylor, 529 U.S. 362 (2000)................................. 1, 6 Winston v. Pearson, 683 F.3d 489 (4 Cir. 2012)............................ 3 Woodson v. Nor Carolina, 428 U.S. 280 (1976)............................ 6 STATUTES Tenn. Code Ann. 40-2018 (1975)......................................... 7 Tenn. Code Ann. 40-2603 (1977)......................................... 7 Tenn. Code Ann. (1977) Sup. Ct. R. 44..................................... 7 Tenn. Code Ann. (1977) Ct. App. R. 12.................................... 7 1978 Tenn. R. Crim Pro. 33............................................. 7 ii
REPLY BRIEF FOR PETITIONER This court must look past Respondent s recitation of irrelevant facts to e issue at hand: in 1978, when Petitioner was placed on trial for his life at e age of 1 19, he did not get a Cadillac lawyer or even a Ford Taurus defense, but a Chevy Vega trial strategy wi bald tires, bad brakes, and no seat belts. Larry Dillow did almost noing to stand between Strou and a dea sentence, failing to do any investigation into e fact at Strou is mentally ill and brain damaged. He ignored Strou s childhood and rejected his family s offers to help. Cf. Sears v. Upton, 561 U.S., 130 S.Ct. 3259 (2010)(per curiam); Rompilla v. Beard, 545 U.S. 374 (2005); Wiggins v. Smi, 539 U.S. 510 (2003); Williams v. Taylor, 529 U.S. 362, 396 (2000). After Dillow failed to discover Strou s mental impairments, Tennessee denied Strou e funds he needed to develop e evidence in postconviction collateral review to prove Dillow s ineffectiveness. His disabilities did not come to light until is federal habeas proceeding, but now Cullen v. Pinholster, 563 U.S., 131 S.Ct. 1388 (2011), appears to preclude eir consideration. Justice requires at, where e state action of denying expert funding made e mental heal evidence unavailable in post-conviction collateral review, 1 See Kagan, Holder Address e Five Decades Since Historic Gideon Decision, March 18, 2013, at http://legaltimes.typepad.com/blt/2013/03/kagan-holder-address-e-five-decades-sin ce-historic-gideon-decision.html (visited March 22, 2013)( Kagan said e provision of a Cadillac lawyer isn't a right for poor defendants. But ey should at least have a Ford Taurus defense, complete wi a lawyer who has e skills, resources and competence necessary to oroughly advise a client. ).
Pinholster should not apply because it was e fault of e state not Strou at e evidence was not developed in state court. See Pinholster, 563 U.S. at, (Sotomayor, J., dissenting)(slip op. At 10). Alternatively, where Strou s mental illness evidence could only be developed initially in federal habeas proceedings, his sentencing ineffectiveness claim must be deemed a new claim for which he can demonstrate cause under is Court s intervening decision in Martinez v. Ryan, 566 U.S., 132 S.Ct. 1309 (2012). Id. (Slip at 11). Eier way, Strou is entitled to relief. And because Respondent asserts at Martinez does not apply in Tennessee, at a minimum is Court should hold Petitioner s casse pending is Court s decision in Trevino v. Thaler, U.S. No. 11-10189. A. Petitioner s Challenge To The Application Of Cullen v. Pinholster Is Properly Before The Court Where That Decision Was The Basis Of The Court Of Appeals Refusal To Consider Petitioner s Previously Unavailable Mental Illness Evidence, Is The Subject Of A Circuit Conflict, And Conflicts Wi Recent Decisions Of This Court Respondent asserts at Petitioner s Pinholster claim is not before e Court. Resp. pp. 8-9. Yet on e preceding page of his brief, Respondent quotes e very portion of e decision of court of appeals at excludes Petitioner s mental heal evidence based on Pinholster: federal courts must limit emselves to e record at was before e state court, Cullen v. Pinholster, 563 U.S., 131 S.Ct. 1388, 1398, 179 L.Ed. 557 (2011). The new mental-heal evidence has no bearing on wheer AEDPA permits us to grant him relief on his [ineffective assistance] claim. A. 56; Resp. 7. Thus, e claim is properly before is Court and certiorari is warranted. 2
This is especially so in light of recent decisions of is Court at contradict e Six Circuit s decision. The court of appeals deemed e decision of e Tennessee courts on Strou s Six Amendment claim an adjudication on e merits for purposes of 2254(d), even ough e state court had denied e funding necessary for Strou to present his claim and, erefore, never heard and evaluated e evidence. See Johnson v. Williams, 568 U.S., Slip Op. 12 (Feb. 20, 2013). The court of appeals decision here us conflicts directly wi is Court s recent pronouncement in Johnson about what constitutes an adjudication on e merits to which Pinhiolster would apply. In fact, is Court also recently denied certiorari in a case in which e Four Circuit held at Pinholster did not preclude federal habeas relief by applying e very eory advocated by Strou here. Winston v. Pearson, 683 F.3d 489 (4 Cir. 2012), cert. denied 568 U.S. (2013). In sum, e Six Circuit s decision conflicts wi bo Johnson and Winston. Compare Ballinger v. Prelesnik, F.3d, 2013 WL 776790 (6 Cir. March 4, 2013) (rejecting e reasoning of Winston). Moreover, e alternative ruling of e Court of Appeals decision is so nonsensical at it must be disregarded. The appellate court endorsed e notion at e temporal removal of psychiatric assessments is grounds to disregard em, which squarely contradicts is Court s holdings, see Porter v. McCollum, 558 U.S. 30 (2009)(finding IAC based on psychological evidence developed 23 years after trial); Rompilla, supra (IAC based on psychological evidence developed 17 years after trial), and en implied at e state courts reached e same conclusion 3
(A56, as e state courts reasonably concluded in finding no prejudice ) an impossibility given at e evidence was never presented to e state courts. Finally, Respondent s argument must be rejected because it misrepresents e record. The post-conviction appellate court did not refuse to overturn e denial of funding based on Petitioner s showing in support of his request. The state court affirmed e denial of funding because it determined at Strou waived his due process inadequate pre-trial psychological assessment claim on direct appeal and he could not overcome e waiver wi a showing of ineffective assistance because he could not show prejudice wiout evidence of what a orough assessment i.e., what he sought funding for would have revealed. Strou v. State, 755 S.W.2d 819, 822 (Tenn. Crim. App. 1986). The court nevereless considered e claim on e merits but denied it because of e lack of evidence. Id. at 832 ( as previously noted, ere is no proof in e record, nor even an assertion by counsel, at Strou's mental evaluation failed to turn up furer evidence at would have affected e jury's verdict in any way ). In bo rulings e state court penalized Strou for failing to show what he had requested funding in order to show. In sum, Tennessee provided Strou wi woefully ineffective trial counsel in his capital prosecution and en denied him e resources necessary to demonstrate at ineffectiveness. The strictures of e AEDPA and is Court s decision in Pinholster require federal courts to consider e state court s decision, which is based on a record whose development at court inhibited, an adjudication on e merits for purposes of habeas review. The effect is at states may hollow out e 4
Six Amendment and evade federal habeas correction by restricting collateral review. This subverts justice and e constitutional order, and for is reason, e Court should grant Strou s petition. B. Petitioner s Martinez Claim Is Properly Before The Court And Martinez Instructs The Proper Resolution Of The Pinholster Catch- 22 Respondent also contends at Petitioner s claim based on Martinez v. Ryan is not properly before is court because Petitioner failed to preserve it below. Resp. 10. That is false. Less an two weeks after Martinez was issued, and before oral argument Strou moved e court of appeals to remand e case to e district court to apply Martinez based on its ruling at e ineffective assistance claim was defaulted because post-conviction counsel had failed to develop e evidence at gave rise to e claim. Strou v. Colson, No. 08-6116 (Appellant s 4/3/12 motion). Having raised e argument at e earliest possible time, Strou properly preserved it for review before is Court, as it was decided during e pendency of his initial habeas appeal. Respondent's assertion at he should not be entitled to its application is frivolous. Compare Haynes v. Thaler, 568 U.S., Slip Op. at 2 (2012) (Sotomayor, J., respecting grant of stay of execution)(if Martinez applies to Texas cases, Haynes should be entitled to application of Martinez, which was decided during pendency of federal habeas appeal). Martinez acknowledged at claims like Strou s often require investigative work and an understanding of trial strategy and at petitioners like him are in no position to develop e evidentiary basis for a claim of ineffective assistance, 5
which often turns on evidence outside e trial record. Martinez at 1317. These facts supported e Court s conclusion at an initial-review collateral proceeding, if undertaken... wi ineffective counsel, may not [be] sufficient to ensure at proper consideration was given to a substantial claim. Id. The same eory at underlies e equitable exception of Martinez indicates e remedy for e Pinholster Catch-22 in is case. 2 Strou s substantial ineffective assistance claim required investigative work and an understanding of trial strategy. The evidence at supports his claim was previously unavailable because of state action, just as Justice Sotomayor hypoesized in her dissent in Pinholster. See Pet. 16-18. Therefore, is Court s acknowledgment in Martinez at state action could impair a post-conviction petitioner s ability to litigate a substantial claim of ineffective assistance of counsel, viz. failure to appoint counsel or appointment of ineffective counsel in initial opportunity collateral review proceedings, must extend to e state action denial of funding at denied Strou s opportunity to develop his evidence. See Dickens v. Ryan, 688 F.3d 1054 (9 Cir. 2012)(deeming newly presented evidence of ineffectiveness a new claim whose default could be overcome under Martinez), rehearing en banc granted, Dickens v. Ryan, 704 F.3d 816 (9 Cir. 2013); Schad v. Ryan, No. 07-99005, 2013 WL 791610 (9 Cir. Feb. 26, 2013). 2 See Sears v. Upton, 130 S.Ct 3259 (2010); Wiggins v. Smi, 539 U.S. 510 (2003); Williams v. Taylor, 529 U.S. 362, 396 (2000); Eddings v. Oklahoma, 455 U.S. 104, 112 (1982); Lockett v. Ohio, 438 U.S. 596 (1978); Woodson v. Nor Carolina, 428 U.S. 280, 304 (1976). 6
Notwistanding e applicability of Martinez, Respondent also alleges at Martinez does not apply in Tennessee, which, he asserts, allow[s] (but do[es] not encourage) ineffective assistance of trial counsel claims to be raised on direct appeal. Resp. 10. These arguments are similar to ose made by e state in Trevino v. Thaler, 568 U.S. (2012)(U.S. No. 11-10189). In fact, Tennessee s statutes, rules of court and procedure, and e decisions of e Court of Criminal Appeals all channeled Petitioner s ineffectiveness claims into post-conviction collateral proceedings. See Tenn. Code Ann. 40-2018 (1975)(requiring appointed counsel to represent a defendant at all stages of e proceedings before e court which appointed e attorney and also upon any appeal from e judgment of e court which imposes a prison sentence ); Tenn. Code Ann. (1977) Sup. Ct. R. 44 (same); Tenn. Code Ann. (1977) Ct. App. R. 12 (any issue not included in motion for a new trial is deemed waived on direct appeal); 1978 Tenn. R. Crim Pro. 33 (new trial motion must be made wiin 30 days); Tenn. Code Ann. 40-2603 (1977)(same); 1978 Tenn. R. Crim Pro. 33(c)(trial court has sole discretion to hold hearing on a new trial motion); State v. Thompson, 768 S.W.2d 239, 245 (Tenn. 1989)(refusing to consider IAC claim on direct appeal) ( ese [] questions are more appropriately raised by oer counsel when e present attorneys are relieved of eir advocacy role ); State v. Sluder, No. 1236, 1990 WL 26552 (Tenn. Crim. App. March 14, 1990)(IAC claim raised on direct appeal a practice fraught wi peril was waived because it was not included in new trial motion); Thompson v. State, 958 S.W.2d 156 (Tenn. Crim. App. 1997)( An appellant [raising IAC on direct 7
appeal] runs e risk of having e issue resolved wiout an evidentiary hearing which, if held, might be e only way at harm could be shown a prerequisite for relief in ineffective trial counsel claims )(internal quotations and citations omitted). This Court anticipated ese very circumstances in Martinez. 132 S.Ct. at 1318 ( Ineffective-assistance claims often depend on evidence outside e record. Direct appeals, wiout evidentiary hearings, may not be as effective as oer proceedings for developing e factual basis of a claim. Abbreviated deadlines to expand e record on direct appeal may not allow adequate time for an attorney to investigate e ineffective assistance claim. ). Given e conflict between Respondent s assertions and Tennessee s statutes, rules, and court decisions, and at e pending decision in Trevino will address nearly identical questions as to wheer Martinez applies under e circumstances presented here, short of granting Strou's petition, is Court should hold is petition pending Trevino and en grant e petition, vacate, and remand for e court of appeals to properly apply Trevino and Martinez in e first instance. See Smi v. Colson, U.S. No. 12-390 (cert. pending)(tennessee capital case apparently being held pending Trevino). 8
CONCLUSION For e foregoing reasons and ose stated in e petition, e petition for a writ of certiorari should be granted. Respectfully submitted, Mark E. Olive Law Office of Mark E. Olive, P.A. 320 W. Jefferson Street Tallahassee, FL 32301 Henry A. Martin Federal Public Defender Jerome C. Del Pino* Assistant Federal Public Defender 810 Broadway Suite 200 Nashville, TN 37203 By: *counsel of record 9
CERTIFICATE OF SERVICE I certify at a copy of e foregoing petition for writ of certiorari was served is 25 day of March, 2013, upon counsel for Respondent, Mr. James E. Gaylord, 425 Fif Avenue Nor, Nashville, Tennessee 37243. Jerome C. Del Pino 10